ARIJIT MULLICK Vs. CORPORATION OF CALCUTTA

JUDGEMENT

(1.) This Rule is at the instance of one of the executors of the deceased plaintiff who died during the pendency of the suit instituted by him and it is directed against order No. 24 dated June 19, 1978 of the Learned Judge, Seventh Bench, City Civil Court, Calcutta. By the said order, the Learned Judge dismissed the application of the petitioner praying for his substitution as the executor of the deceased plaintiff.

(2.) The case of the petitioner is that the deceased plaintiff died leaving a will and appointed the petitioner and another person as executors. The other person is not willing to act as executor and, accordingly, the petitioner filed an application for his substitution as executor in place of the deceased plaintiff. The Learned Judge took the view that as the will was not probated, the petitioner could not be substituted. He stayed all further proceedings of the suit till Sept. 19, 1978 with liberty to the petitioner to apply for further extension of time, if necessary so as to enable him to obtain probate of the will.

(3.) In my opinion, the procedure that has been followed by the Learned Judge is erroneous as executor of the Will is the legal representative of the deceased for all purposes. It has been observe by the Privy Council in S.M.K.R. Meyappa Chetty Vs. S.N. Subramanian Clietty, 43 I.A. 113.